Barwood v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 80/2006 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 22/05) BETWEEN GAIL BARWOOD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 10 November 2005 Appearances: Alan Rowlett advocate for appellant Hamish Peart for respondent Judgment: 4 April 2006 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal question is whether a Reviewer incorrectly exercised a discretion to refuse an award of costs following an unsuccessful review. The review was taken against a finding by the Corporation that it did not breach Ms Barwood’s right to effective communication. Merits of the review application [2] The background facts can be found in my judgment in Barwood (307/05), part of which is repeated here. Ms Barwood’s individual rehabilitation plan was sent to her, and very shortly afterwards, she was notified that it was finalised. Finalisation of the plan constituted a decision. In an appeal against finalisation of the plan, Mr Rowlett for the appellant argued that the plan failed to address rehabilitation in the manner required by the Injury Prevention, Rehabilitation, and Compensation Act 2001. [3] Ms Barwood had been living in England for some time. She was self employed as a free lance photographer, but was not working full time. She had a pain condition, and had limitations affecting mobility. She needed a driver to get about for her photography work. [4] In 1999 the Corporation had agreed to support Ms Barwood for 18 months as a self-employed photographer. In March 2001 a new rehabilitation plan was developed in similar terms to an earlier IRP, with the goal of independent self employment by the end of June 2001. It was noted in the plan, that Ms Barwood was aware that the support for a photography business could not be continued beyond February 2002. She was asked to attend a meeting in January 2003 to discuss computer training and occupational therapy support and the establishment of a New Zealand office for her business. [5] She returned to New Zealand for initial occupational and medical assessments during May and June 2003. The medical assessor took the view that she was able to work an eight hour day in an administrative position. He did not find credible her view of her injury related limitations. [6] After the assessment, ACC initially attempted to arrange for Ms Barwood to consult with her case manager about the viability of her photography business, but then abandoned that course. Consequently, the continuation of the photography business was not addressed for the purpose of vocational rehabilitation . [7] ACC proceeded to notify Ms Barturm of a new IRP by sending it to her in England 8 September 2003. It identified four job options, which the initial medical assessment had identified as medically sustainable. There was no intervention or rehabilitation assistance offered in the IRP. It contained the statement that: “Ms Barwood must either establish her current employment as a motor sports photographer permanently or seek alternative permanent employment in the appropriate job options identified in the recent vocational assessment. Ms Barwood will keep regular contact with her Case Manager during the period of rehabilitation. This by brief written report (or email) noting progress and providing contact details of employers she has approached.” [8] There was an accompanying letter which stated that: “ … as no other interventions have been identified to assist you back to work, that your rehabilitation is essentially complete now. We will however, give you until the end of November 2003 to establish yourself further into your current work and still have other options if you should reconsider the alternative job types.” [9] The aims of the IRP were to be achieved by 30 November 2003. Ms Barwood was required by the plan to remain in her self employment or seek other employment. There was no active rehabilitation. She was offered no assistance, and the plan did not prepare her to increase or develop her work capacity for the jobs listed in the initial assessments. [10] Ms Barwood replied on 18 September. She expressed her concern with the time frame as being too short to establish herself in her current work of motor sport photography, or to find alternative work in the UK or in Europe or New Zealand. She asked if ACC would assist her with some photography equipment as outlined in an earlier business plan. [11] The response from the Corporation was to follow the course which it had set out in the draft IRP and, on 3 October 2003, to advise the appellant that the plan of 8 September 2003 was considered agreed upon. That was a decision under Clause 8(2) of Schedule 1 of the 2001 Act, finalising a plan. Ms Bartrum failed in her review of that decision, and on appeal I confirmed the Reviewer’s finding. I decided that effective rehabilitation could not be planned while Ms Bartrum continued to live in the UK. Given the time that had already been allowed for her to attempt to establish independent self employment as a photographer, I decided that the Corporation was entitled to move towards finally assessing her for capacity to work or for vocational independence. [12] In the review now under consideration, The Reviewer described the content of the series of letters sent by Mr Rowlett requesting information from the case manager, Ms Millar. [13] In a letter to Ms Barwood’s case manager, Ms Millar, on 26 May 2004, Mr Rowlett sought clarification of the wording in the IRP statement that “Ms Barwood must either establish her current employment as a motor sports photographer permanently or seek alternative permanent employment in the appropriate jobs identified in the recent vocational assessment”. The Reviewer noted that Mr Rowlett asked the case manager to please advise exactly what she meant by the word “establish” in this context and he provided 11 dictionary definitions of the word establish. In a written reply two days later, Ms Millar explained that: “The rehabilitation plan has given Ms Barwood time to obtain employment within a different job type or to decide to remain within the motor sports photography business. That the Corporation has provided an option for Ms Barwood to establish her job as a photographer, is by no means suggesting that there is support for her to remain in self-employment, but as it was determined at the review hearing, has given her time to make a choice and to remain following her ambitions for photography”. [14] The Reviewer noted that Mr Rowlett wrote to Ms Millar again on 21 July 2004 asking for clarification of what she would consider to be the meaning of the word “established” with regard to Ms Barwood’s self-employed venture. Ms Millar responded in a letter of 26 July 2004 that what she believed needed to be achieved in accordance with the rehabilitation plan was for Ms Barwood to find work. She went on to explain the choice of obtaining different work from her photography, or continuing with her photography. She stated that it would have been unreasonable for ACC to have precluded this type of work for Ms Barwood just because they would no longer support her being self-employed. [15] The Reviewer recorded that Mr Rowlett wrote again to Miss Millar on 30 July 2004 with a discussion as to the use of the word ‘either’. He asked Ms Millar to explain what has to be achieved for Ms Barwood to consider that her current employment has been established permanently. She responded on 4 August 2004, in a letter that was bullet-pointed in five paragraphs, again explaining the statement in the IRP, and what Ms Barwood is required to do in order to further her rehabilitation plan, developing her work as a self-employed, self-sustaining motor sports photographer. [16] The Reviewer recorded that Mr Rowlett wrote again on 11 August 2004 in a two-page letter. He stated the exact wording of the IRP intervention statement, and discussed the merits of the word ‘support’ and ‘providing assistance’, and stated that his question had not still been answered. He wrote: “What is meant by the term establish her current employment as a motor sports photographer permanently?” [17] On 18 August Miss Millar responded again in a four-paragraph letter, which began: “I have exhausted my attempts to explain to you what is expected of Ms Barwood. Please refer to my previous letters”. [18] Mr Rowlett wrote again on 20 August 2004 to Ms Millar stating that she had again avoided answering his questions. He proceeded to then ask her seven questions, which he had re-formatted, with specific instructions at the end of each sentence: “Please answer yes or no if the answer to the previous question is yes ... ” [19] The Reviewer noted that On 31 August 2004 Ms Millar responded to Mr Rowlett, explaining again that her attempts to explain what is expected of Ms Barwood for her rehabilitation had been thoroughly exhausted. She respectfully urged him to please concentrate his communication with her to Ms Barwood's return to New Zealand for a vocational independence assessment as required. [20] Mr Rowlett lodged a complaint that ACC had breached Right 5, the right to effective communication contained in the Code of ACC Claimants’ Rights. In a decision of 8 October 2004, ACC wrote: “Ms Barwood's file records show that your letters were responded to by ACC in a timely manner. There is no evidence that ACC has avoided or refused to answer your questions. I have viewed ACC’s letters issued to you in August 2004; I am satisfied that ACC has made every and numerous attempts to provide reasonable answers and explanations to your questions”. [21] The Reviewer confirmed the Corporation’s decision [22] The above recital of the correspondence is taken from the Reviewer’s decision. The Court does not have a copy of the correspondence. There is no appeal against the Reviewer’s decision on the point of alleged breach of a the Code of ACC Complainants’ Rights. There is a right of appeal against a refusal to award costs. The reason for that right existing independently was explained by Judge Beattie in Trembath (279/05). [23] An appeal against the Reviewer’s refusal to order costs is an appeal against the exercise of a discretion. It is necessary for the appellant to show that the tribunal acted on a wrong principle, or that it failed to take into account some relevant matter or that it took account of some irrelevant matter or that it was plainly wrong; May v May [1982] 1 NZFLR 165. [24] In exercising a discretion not to award costs, the Reviewer said: “Mr Rowlett sought representation costs. On the basis that there is no evidence that Mr Rowlett has been able to present an explanation, either to the complaints office, or to the reviewer, of ineffective communication from ACC, I find this application was not reasonably brought. Therefore I decline to award costs under section 148(2)(b) of the Act.” [25] The decision to decline costs was on the basis that there was no evidence of ineffective communication. The evidence consisted of the letters, and the Reviewer found that there was no ineffective communication. That itself would not have justified refusing an award of costs. I think that the reason for the Reviewer’s exercise of discretion was intended to convey that the evidence was not only insufficient, but disclosed nothing at all that could even arguably have amounted to ineffective communication. That is what the Reviewer must have meant by “no evidence” in the circumstances. [26] To follow the Reviewer’s opinion that there was nothing to justify the review being brought, regard must be had to the Reviewer’s reasoning on the merits of the review. In relation to the content of the correspondence, the Reviewer said: “After convening a hearing for close to one hour, I found that it was still unclear specifically what Mr Rowlett had wished Ms Millar to answer. Mr Rowlett agreed that he has been representing Ms Barwood from the time her IRP plan was deemed complete. He has the full backdated files which include all previous discussion and assessment of Ms Barwood's history of trying to establish a sustainable self employed job as a motor sports photographer. Mr Rowlett agreed that he has read the review decision relating to the deemed IRP. Yet he asked Ms Millar, in repetitive letters, for semantic explanations of words such as ‘either’, ‘establish’ and ‘permanently’, within the context of the clause set out in Ms Barwood's IRP. After listening to Mr Rowlett's submissions, I pointed out to him that the only conclusion I could reach was that, on the basis of the letters between 26 May and 20 August 2004 to Ms Millar, his questions bordered on harassment of his client’s case manager. I find that Ms Millar’s numerous responses, within days of each letter from Mr Rowlett, are indeed informative. I find that she has attempted admirably to answer his questions without obviously understanding why he is asking such a question. She has attempted in each letter to approach it in a different way to try and extrapolate or further develop what is required of his client to meet the time-framed intervention as documented. I have also expressed my concerns to Mr Rowlett at the hearing that it appears that the problem with communication was contributed to by his insistence on asking for out-of- context definitions of specific words such as the word ‘establish’.” [27] The Reviewer gave a further reason to dismiss the review, as follows: “It appears that Mr Rowlett did not have specific instructions from his client Ms Barwood, who lives in London, in between each letter he sent in response. Indeed, as noted by the office for complaints investigator, there is no communication from the claimant, Ms Barwood. Mr Rowlett stated that at some point during the series of letters of communication with Ms Millar he did have, ‘the odd phone call or fax to his client in London’. However, he was unable to explain what it was that Ms Barwood did not understand. I find that the letters and replies and further questions from Mr Rowlett created a scenario where he may have believed he was being ineffectively communicated with, as the representative, however, the code of claimants’ rights is not about representative rights, it is about claimants’ rights. I find that the evidence clearly establishes that Ms Barwood has been amply informed of the steps required to meet the time-framed interventions as deemed finalised on her rehabilitation plan. Further, under section 70 of the Act she has an obligation to take responsibility for her rehabilitation. Therefore, I uphold ACC's decision that the right to effective communication has not been breached, on the basis that the evidence shows that ACC in this case did everything within its power to attempt to clarify matters with Mr Rowlett, to no avail.” [28] The Court is not required to decide whether the Reviewer was correct. The enquiry is whether the Reviewer acted in a wrong principle, or that she failed to take into account some relevant matter, or that she took account of some irrelevant matter or that he was plainly wrong. [29] In my view, the Reviewer was entitled to reach the conclusion that she did, particularly on the point that the case manager’s responses effectively addressed the oddly articulated requests. It appeared that Mr Rowlett had a purpose in asking the questions contained in his letters, but he did not refer to that purpose, rather he tried to get the case manager to commit to a definition of certain words. It seems that some further course of action might then have followed, depending on the definition which the case manager might have adopted if she had explained the meaning of [30] There was certainly scope for argument about the adequacy of the IRP. It did not provide for any vocational rehabilitation. The reasons for that apparently concerned the appellant’s wish to remain in England and to continue with her chosen post-injury career. It might have been better if the IRP had stated that the Corporation could not identify any area for further vocational rehabilitation while Ms Barwood remained in England and that it considered the vocational rehabilitation process to be complete. [31] In a possible response to the offered IRP, there was scope for enquiry about further opportunity for consultation, particularly as to avenues for vocational rehabilitation upon return to New Zealand within a reasonable time, or conceivably for vocational rehabilitation in England without ACC funding. But while Ms Bartrum did not seek vocational rehabilitation in New Zealand and did not suggest any avenue for further vocational rehabilitation, there was reasonable ground for the Corporation to consider that it had no further obligation to provide vocational rehabilitation. [32] In practical terms the IRP set an end date for completion of the plan. Mr Rowlett fixed on the wording of the IRP as being inadequate or meaningless as an expression of vocational rehabilitation. I think that was the basis from which he questioned its terms by asking for definitions of words. In my view, the replies from the case manager were appropriate in the context of her obligations to communicate information about the purposes of the IRP and the reasons for the Corporation’s approach to it. The case manager’s ordinary functions did not require her to enter into arguments about the definitions of words. Mr Rowlett’s enquiries did not address questions which might have imposed an obligation upon the case manager to provide information. [33] The Reviewer decided that the words in the IRP were self explanatory, and that the case manager’s replies to correspondence were appropriate. The tone of the Reviewer’s decision conveyed that she was unable to find anything in the evidence or the submissions for the appellant that she would have regarded as arguable. Put in another way there was no arguable case, and in her view the application for review should not have been brought. [34] I am unable to find that the Reviewer acted on a wrong principle, or failed to take into account some relevant matter, or took account of some irrelevant matter or that she was plainly wrong. [35] For those reasons the appeal is dismissed. Signed at Wellington on 4 April 2006 at Judge D A Ongley District Court Judge